The Homogeneity of State Courts: An Analysis on Racial and Gender Diversity

Abstract

This thesis explores the relationship between selection mechanisms and the diversity of state courts of last resort. Diversity is categorized in two ways, first with racial diversity constituting a focus on black and non-black justices and second with gender diversity establishing an emphasis on male and female justices. The main question that arises is which formal judicial selection mechanism correlates to the most diversity? In order to accurately answer this question about both levels of diversity, I designed two studies to estimate the likelihood of a transition from the majority to the minority and whether or not the seat reverts back. There was no data set that traced out the individual seat progression over the years, so I spent months meticulously collecting data on exactly which judge filled each vacancy across the fifty states between 1973 and 2016. The two datasets trace out the seat progressions, denoting a transition between races, African Americans and non-African Americans, and genders, females and males. It is important to note that these are two separate studies with data from two different data sets because I did not want to combine racial and gender diversity into one study. With this data, I performed two methods of analysis. The first used Markov transition models to probabilistically describe the seat progressions for each state. The second analysis used logistical regressions with interaction terms to model the odds that an African American justice or female justice transitions off the bench. This direction of a transition from a minority to a majority denotes a decrease in diversity and these transitions serve as my proxy to represent diversification. Although the results are not casual, they do imply correlations that have significant implications for public policy. In addition to investigating the influence of appointive and elective systems on diversity, I included multiple contextual factors that were influenced by my review of the literature and theories relating to diversifying the judicial system. Numerous theories such as duration dependence, tokenism, regionalism, and eligibility theory influenced my hypotheses. The results of my research evidenced that selection mechanisms have a significant influence in the gender diversity study, while not in the racial diversity study. Additionally, contextual factors such as the proportion of educated individuals in the minority group had a significant and consistent influence across the two studies, evidencing the saliency of eligibility theory. Furthermore, the presence of a “token” seat reserving a certain proportion of the bench for a minority, serves to be a hindrance in the long-run probability of seeing African Americans and women on the bench. In my policy recommendations, I suggest that the attention shifts from which selection mechanisms encourages diversity to which factors will limit the disparity between the majority and minority group, such as education and increasing the number of eligible minorities in each state. Moreover, I use the evidence revealed in my Markov models to indicate the potentially severe ramifications that result in the persistence of tokenism and suggest a research design for a study that will identify its presence and test its significance. Lastly, I highlight the need to decipher the intricacies of doubly marginalized justices such as black women that may face an even more relentlessly obstructed path to the bench than what can be uncovered in my probability analysis and statistical models to follow.